Excerpt:co-owners - adverse possession--exclusive possession, whether amounts to ouster--alienation by co-sharer--possession of alienee, whether adverse to other co-sharers. - .....of the disputed land be held good a declaration may be given in respect of his right to the 12-annas share of the said land and he seeks for recovery of joint possession with the defendants to the extent of such share. it appears that one golok koch died leaving behind him two sons srikanta and badan. srikaata died leaving behind him kuda who is the plaintiff in the present litigation. badan died leaving behind nidhoo and mangloo his two sonsas his heirs. nidhoo transferred his interest in the land to the defendants in the year 1905. the main defence of the defendants is that the title of the plaintiff to the disputed land or to the 12 annas share of the same has been extinguished by adverse possession by them for more than the statutory period. it is not disputed that by reason of.....

Judgment:

D.N. Mitter, J.

1. This is an appeal by the plaintiff and arises out of a suit commenced by him for declaration of his title to the land is suit and for recovery of possession of the same. In the alternative the plaintiff claims that if the defendant's purchase of the disputed land be held good a declaration may be given in respect of his right to the 12-annas share of the said land and he seeks for recovery of joint possession with the defendants to the extent of such share. It appears that one Golok Koch died leaving behind him two sons Srikanta and Badan. Srikaata died leaving behind him Kuda who is the plaintiff in the present litigation. Badan died leaving behind Nidhoo and Mangloo his two sonsas his heirs. Nidhoo transferred his interest in the land to the defendants in the year 1905. The main defence of the defendants is that the title of the plaintiff to the disputed land or to the 12 annas share of the same has been extinguished by adverse possession by them for more than the statutory period. It is not disputed that by reason of the events that have happened the plaintiff would be entitled by inheritance to succeed to his father's 8-annas share and to the 4-annaa share of Mangloo who it is said, is dead, and the Munsif points out that if the plaintiff's right is not barred by limitation he would have succeeded in his claim for his 12-annas share of the holding. The suit was dismissed, however, on the ground of limitation. An appeal was taken to the Court of the Subordinate Judge of Kajshahi. The learned Judge has affirmed the decision of the Munsif on the question of limitation, and that was the only question that was in controversy before him.

2. It appears that Nidhoo was a co-sharer of Mangloo and the plaintiff and the possession of Nidhoo or his vendees that is the defendants even for more than the statutory period was not by itself sufficient to constitute an ouster. What has been shown in this case is that the transferees were receiving the rents and profits of the property, exclusively. But mere exclusive possession without more by a co-sharer of joint land is not sufficient to constitute an ouster. As has been pointed out by the Judicial Committee of the Privy Council in the case of Hardit Singh v. Gurmukh Singh 47 Ind. Cas. 626 : 28 C.L.J. 437 : 58 P.L.R. 1918 : 64 P.R. 1918 : 24 M.L.T. 389 : 20 Bom. L.R. 1064 : (1919) M.W.N. 1 : 9 L.W. 123 : 14 P.L.R. (P.C.) 8 (P.C.). 'Uninterrupted sole possession of such property without more must be referred to the lawful title possessed by the joint holder to the use of the joint estate, and cannot be regarded as an assertion of a right to hold it as separate, so as to assert an adverse claim against other interested members. Possession may be either lawful or unlawful, in the absence of evidence it must be accused to be the former. The fact, therefore, that this village of Bhagsar has been occupied in many years by the defendants and their predecessors is inefficient to prove exclusion of the plaintiffs without further evidence.' The lower Appellate Court has, however, sought to draw a distinction between exclusive possession by a co-sharer and possession by a stranger transferee of such co-sharer. There is, no doubt, some suthority for this view, as for instance the case of Abdul Gafur v. Ashamath Bibi 54 Ind. Cas. 385 : 11 L.W. 31, where Seshagiri Aiyar and Moore, JJ. laid it down that the entry of an alienee from a Co parcener into the property alienated is adverseto the other co parceners from the very moment of that entry. I was at one time inclined to take the same view, see my judgment in the case of Biswanath Chakravarti v. Rabija Khatun 117 Ind. Cas. 593 : 33 C.W.N. 46 : Ind. Rul. (1929) Cal. 545, That view has not been accepted by the learned Chief Justice and Mr. Justice Mukerji in the same casa in appeal from my judgment under Section 15 of the Letters Patent Biswanath Chakravarti v. Rajiba Khatun 56 C. 616 : 117 Ind. Cas. 593, Under these circumstances I am bound by the decision which was given by the learned Chief Justice and Mr. Justice Mukerji in that appeal. In that case it was pointed out that when the interest of a co-tenant is purchased by a third party such purchaser becomes a tenant-in-common with the other co-tenants and the possession of such co tenants cannot, in the absence of clear proof to the contrary, be adverse to such purchaser. Under these circumstances it appears to me that the view taken by the lower Appellate Court on the question of adverse possession cannot be maintained in view of the decision to which I have referred.

3. The result is that the judgment and decree of both the Courts infavour of the defendants must be set aside and in lieu thereof a decree will be made in favour of the plaintiff declaring his title to 12 annas of the disputed holding and directing that he do get joint possession of the same with the defendants to the extent of his share.

4. The appellant will be entitled to his costs of this appeal.

5. Leave has been asked for appeal by the learned Advocate for the respondents. I do not think that this is a fit case for appeal under the Letters Patent.